Industrial Legislation Amendment Act 2011 (WA)

Western Australia

Industrial Legislation Amendment Act 2011

Western Australia

Industrial Legislation Amendment Act 2011

CONTENTS

Part 1 — Preliminary

1.	Short title	2
2.	Commencement	2
Part 2 — *Construction Industry*

Portable Paid Long Service Leave

Act 1985 amended

3.	Act amended	3
4.	Section 3A inserted	3

3A.

Application offshore

5.	Section 3 amended	3
6.	Section 6 amended	7
7.	Section 7 amended	8
8.	Section 8 amended	9
9.	Section 21 amended	10
10.	Section 22 amended	11
11.	Section 23 amended	12
12.	Section 24 amended	12
13.	Section 28 amended	12
14.	Section 30 amended	13
15.	Section 31A inserted	14

31A.

Registration of employees

16.	Section 31 amended	15
17.	Section 32 amended	16
18.	Section 34 amended	16
19.	Section 35A inserted	17

35A.

Penalty for late payment

Industrial Legislation Amendment Act 2011

Contents

20.	Section 38 amended	17
21.	Section 45 amended	18
22.	Section 49 amended	18
23.	Section 50 replaced	19

50.	Review of Board’s decision	19
51A.	Procedure on review	20

24.	Section 51 amended	21
25.	Section 52 replaced	21

52.

Obstructing inspector or other person

26.

Section 53 replaced

53. Protection of persons giving information

under this Act

54A.

Remedies for breach of section 53

27.	Section 55 amended	24
Part 3 — *Industrial Relations*

Act 1979 amended

Division 1 — Preliminary

28.	Act amended	25
Division 2 — Amendments consequential to

Part 2 amendments

29.	Section 81AA amended	25
30.	Section 81CA amended	25
31.	Section 83E amended	26
Division 3 — Amendments relating to

Commonwealth legislation

32.	Section 7 amended	26
33.	Section 31 amended	27
34.	Section 71 amended	27
35.	Section 73 amended	27
36.	Section 80H amended	28
37.	Section 80ZJ amended	28
38.	Section 97VS amended	28
39.	Various references to “the Australian Commission”
amended	28
Division 4 — Other amendments
40.	Section 7 amended	29
41.	Section 29A amended	30
42.	Section 81AA amended	31
43.	Section 85 amended	31

Industrial Legislation Amendment Act 2011

Contents

44.	Section 93 amended	31
45.	Section 98 amended	32
46.	Sections 99A to 99D inserted	33

99A.	Identity card	33
99B.	Production of identification	33
99C.	Staff	34
99D.	Designation of officers, generally	34

47.	Section 113 amended	35
48.	Various references to “the Council” amended	36
Part 4 — *Minimum Conditions of*

Employment Act 1993 amended

49.	Act amended	37
50.	Schedule 1 amended	37
Part 5 — *Employment Dispute*

Resolution Act 2008 amended

51.	Act amended	38
52.	Section 3 amended	38
53.	Section 26 deleted	39
54.	Section 27 replaced	39

27. Application for IR Commission to conduct

dispute resolution process

55.	Section 28 amended	39
56.	Section 29 amended	40
57.	Section 31 amended	40
Part 6 — *Litter Act 1979* amended
58.	Act amended	41
59.	Section 9 amended	41
Part 7 — *Occupational Safety and*

Health Act 1984 amended

60.	Act amended	42
61.	Section 6 amended	42

Western Australia

Industrial Legislation Amendment Act 2011

No. 53 of 2011

An Act to amend the following Acts —

•	the *Construction Industry Portable Paid Long Service Leave Act 1985*;
•	the *Industrial Relations Act 1979*;
•	the *Minimum Conditions of Employment Act 1993*;
•	the *Employment Dispute Resolution Act 2008*,

and to make minor amendments to other Acts.

[Assented to 11 November 2011]

The Parliament of Western Australia enacts as follows:

Industrial Legislation Amendment Act 2011

Part 1	Preliminary
s. 1

Part 1 — Preliminary

1. Short title

This is the Industrial Legislation Amendment Act 2011.

2. Commencement

This Act comes into operation as follows —

(a)	sections 1 and 2 — on the day on which this Act receives the Royal Assent;
(b)	the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions.

Industrial Legislation Amendment Act 2011

Construction Industry Portable Paid Long Service Leave Act

Part 2

1985 amended

s. 3

Part 2 — Construction Industry Portable Paid Long

Service Leave Act 1985 amended

3. Act amended

This Part amends the Construction Industry Portable Paid Long

Service Leave Act 1985.

4. Section 3A inserted

After section 2 insert:

3A.

Application offshore

(1)

In this section —

offshore area means an area referred to in the

Industrial Relations Act 1979 section 3(3).

(2)

Where, under the Industrial Relations Act 1979

section 3, that Act applies to and in relation to any

construction industry carried on wholly or partly in an

offshore area, then —

(a)	this Act applies to and in relation to employers and employees in that industry in that area; and
(b)	subsection (4) of that section applies with all necessary changes for the purposes of this Act.

5. Section 3 amended

(1)	In section 3(1) delete the definitions of: *award* *employee* *employer*

Industrial Legislation Amendment Act 2011

Part 2

Construction Industry Portable Paid Long Service Leave Act

1985 amended

s. 5

(2)	In section 3(1) insert in alphabetical order:

apprentice means a person who is an apprentice under

a training contract that —

(a)	provides for training in a classification of work referred to in a prescribed industrial instrument relating to the construction industry that is a

prescribed classification; and

(b)	is registered under the Vocational Education and Training Act 1996 Part 7 Division 2 or an Act of another State or a Territory that corresponds to that Act;

approved form means a form approved by the Board for the purposes of the provision in which the term is used;

employee means —

(a)	a person who is employed under a contract of service in a classification of work referred to in a prescribed industrial instrument relating to the construction industry that is a prescribed classification; or

(b) an apprentice;

employer means —

(a)

a natural person, firm or body corporate who or which engages persons as employees in the construction industry; or

(b)

person who is a party to a contract of service

with the agency (person A) to do work in the

construction industry for another person

a labour hire agency which arranges for a for person B under an arrangement between the agency and person B,

but does not include a Minister, authority or local

government prescribed under subsection (4)(c);

Industrial Legislation Amendment Act 2011

Construction Industry Portable Paid Long Service Leave Act

Part 2

1985 amended

s. 5

industrial instrument means —

(a)	an award, industrial agreement or order made under the Industrial Relations Act 1979; or
(b)	an award, determination, enterprise agreement or order made under the Fair Work Act 2009 (Commonwealth); or
(c)	continuing effect under the Fair Work

an award, determination or agreement given Amendments) Act 2009 (Commonwealth),

irrespective of whether or not the instrument has, since it was made or given continuing effect, ceased to be in force;

inspector means a person engaged or appointed under

section 44(1);

labour hire agency means a person or entity that

conducts a business of the kind commonly known as a

labour hire agency;

prescribed means prescribed by regulations made

under this Act;

training contract means a contract that complies with

the Vocational Education and Training Act 1996

section 60E;

WAIRC means The Western Australian Industrial

Relations Commission continued and constituted under

the Industrial Relations Act 1979;

(3)	In section 3(1) in the definition of *construction industry*:

(a)	after paragraph (a)(i) insert:

(iia)

swimming pools and spa pools;

Industrial Legislation Amendment Act 2011

Part 2

Construction Industry Portable Paid Long Service Leave Act

1985 amended

s. 5

(b)	in paragraph (a)(xvi) delete “for the use on” and insert:

for use on or for the use of

(c)	in paragraph (f) delete “for an employer who” and insert:

for an employer, or another person under an arrangement with a labour hire agency, who

(4)	In section 3(1) in the definition of *union* delete “Schedule 1 of the Workplace Relations Act 1996 of the Commonwealth” and insert:

the Fair Work (Registered Organisations) Act 2009

(Commonwealth)

(5)	Delete section 3(3).
(6)	In section 3(4):

(a)	delete “award” (each occurrence) and insert:

industrial instrument

(b)	in paragraph (a) delete “definition of *employee*;” and insert:

definitions of apprentice and employee;

Industrial Legislation Amendment Act 2011

Construction Industry Portable Paid Long Service Leave Act

Part 2

1985 amended

s. 6

6. Section 6 amended

(1)	Delete section 6(1)(b) and (c) and insert:

(b)	2 persons appointed from among persons whose names are on a panel of 4 names comprised of —

(i) 2 names submitted by the Master Builders’ Association of Western Australia; and

(ii) 2 names submitted by the Chamber of Commerce and Industry of Western Australia (Inc);

(c)	2 persons appointed from among persons whose names are on a panel of 4 names comprised of —

(i) 2 names submitted by UnionsWA; and

(ii)	Trades Association of Unions of

2 names submitted by The Building Workers);

(d)	one person who in the Minister’s opinion represents the interests of employers in the construction industry;
(e)	one person who in the Minister’s opinion represents the interests of employees in the construction industry.

(2)

After section 6(4) insert:

(5)	Despite subsection (1) —

(a)	subject to section 8, each of the persons holding office as a member of the Board under subsection (1)(b) or (c) immediately before the

Industrial Legislation Amendment Act 2011

Part 2

Construction Industry Portable Paid Long Service Leave Act

1985 amended

s. 7

continues to hold office for the remainder of their term of appointment; and

coming into operation of the Industrial

(b)	the Minister is not to appoint a person under subsection (1)(d) until a person referred to in paragraph (a) ceases to hold office as a member

under subsection (1)(b); and

(c)	the Minister is not to appoint a person under subsection (1)(e) until a person referred to in paragraph (a) ceases to hold office as a member

under subsection (1)(c).

(6)	The regulations may amend subsection (1)(b) or (c) in order to reflect a change in the name of any body referred to in that paragraph.

7. Section 7 amended

(1)	Delete section 7(1) and insert:
(1) If —

(a)	a member appointed under section 6(1)(b) or (c) is absent or temporarily incapable of fulfilling the duties of a member; or
(b)	the office of a member appointed under section 6(1)(b) or (c) is vacant,

the Minister may, on the nomination of the relevant body referred to in section 6(1)(b) or (c), appoint a person to act in the place of that member during that

absence or incapacity, or until the vacancy is filled, as

the case requires.

Industrial Legislation Amendment Act 2011

Construction Industry Portable Paid Long Service Leave Act

Part 2

1985 amended

s. 8

(2)	Delete section 7(3) and insert:
(3) If —

(a)	the chairman or a member appointed under section 6(1)(d) or (e) is absent or temporarily incapable of fulfilling the duties of a member; or
(b)	the office of the chairman or a member appointed under section 6(1)(d) or (e) is vacant,

the Minister may appoint a person to act in the place of

that member.

(4A)	While acting in the place of a member under this section an acting member has all the functions and entitlements of the member.

8. Section 8 amended

(1)

Delete section 8(1) and insert:

(1)	The Minister may remove a member from office on the grounds of —

(a)	mental or physical inability to carry out the duties of the office in a satisfactory manner; or

(b) neglect of duty; or

(d)	absence, without leave of the Minister or an excuse which is satisfactory to the Minister, from 3 consecutive meetings of the Board of which the member has had notice.

Industrial Legislation Amendment Act 2011

Part 2

Construction Industry Portable Paid Long Service Leave Act

1985 amended

s. 9

(2)	In section 8(2):

(a)	in paragraph (b) delete “his appointment is terminated” and insert:

the member is removed from office

(b)	delete paragraph (c).

9. Section 21 amended

(1)	In section 21(1) delete “award” and insert:
any industrial instrument
(2)	After section 21(2) insert:

(3A)	In addition to the provisions set out in subsection (2), for the purposes of calculating the entitlement of an employee to long service leave under subsection (1), any period of service which occurred —

(a)	before a break in service; and
(b)	when the person was not registered as an employee under this Act; and
(c)	after the coming into operation of the Industrial Legislation Amendment Act 2011 section 9(2),

is not to be counted as service.

Industrial Legislation Amendment Act 2011

Construction Industry Portable Paid Long Service Leave Act

Part 2

1985 amended

s. 10

(3)	In section 21(3) delete “subsection (1) —” and insert:

this section —

break in service means —

(a)

in the case of a person who has been engaged as an employee for any number of days that does not exceed 1 100 days of service — a period within which the person is not so engaged of 2 years or more commencing from the last day of that engagement; or

(b)

as an employee for any number of days

exceeding 1 100 days of service — a period

within which the person is not so engaged of

in the case of a person who has been engaged of that engagement;

10. Section 22 amended

(1)	Delete section 22(1)(b)(ii) and insert:

(ii) for any period of service after the completion of 10 years of service which is not part of the period of an accrued entitlement under section 21(1), a sum which bears the same proportion to the money value of the entitlement referred to in section 21(1)(a) as the period of service bears to 10 years.

(2)

After section 22(2) insert:

(3)	When a lump sum payment is made to an employee or in respect of a deceased employee under this section,

Industrial Legislation Amendment Act 2011

Part 2

Construction Industry Portable Paid Long Service Leave Act

1985 amended

s. 11

the Board must remove the name of that person from

the register of employees.

(4)	Nothing in subsection (3) prevents a person referred to in subsection (1) from becoming entitled to registration as an employee under this Act by virtue of any
subsequent service as an employee.

11. Section 23 amended

In section 23(1)(a) and (b) after “1 100 days” insert:

of service

12. Section 24 amended

Delete section 24(2).

13. Section 28 amended

(1)	In section 28(1) and (2) delete the Penalty.
(2)	After section 28(3) insert:

(4A)

A contravention of subsection (1) or (2) is not an

offence but those subsections are civil penalty

provisions for the purposes of the Industrial Relations

Act 1979 section 83E.

(4B)

Subsection (4A) extends to a contravention that

occurred within the period of 12 months ending on the

coming into operation of the Industrial Legislation

Amendment Act 2011 section 13 unless the person was

charged with an offence in respect of that

contravention.

Industrial Legislation Amendment Act 2011

Construction Industry Portable Paid Long Service Leave Act

Part 2

1985 amended

s. 14

14. Section 30 amended

(1)

Delete section 30(1) to (8) and insert:

(1)

Every employer must register as an employer under

this Act.

(2)

An application for registration as an employer must —

(a)	be made in the approved form; and
(b)	contain the information required by the form.

(3)	An applicant for registration as an employer must include in the application every name under which, and address from which, the applicant operates as an employer.
(4)	An employer must notify the Board if the employer ceases to operate as an employer under any name or from any address included in an application for
registration by the employer.
(5)	A contravention of subsection (1), (3) or (4) is not an offence but those subsections are civil penalty provisions for the purposes of the Industrial Relations Act 1979 section 83E.
(6)	Subsection (5) extends to a contravention that occurred within the period of 12 months ending on the coming into operation of the Industrial Legislation Amendment Act 2011 section 14 unless the person was charged with an offence in respect of that contravention.

Industrial Legislation Amendment Act 2011

Part 2

Construction Industry Portable Paid Long Service Leave Act

1985 amended

s. 15

(2)

In section 30(10)(a) delete “employer or employee as the case

requires; and” and insert:

employer; and

Note:

The heading to amended section 30 is to read:

Registration of employers

15. Section 31A inserted

After section 30 insert:

31A.

Registration of employees

(1)	Subject to subsection (5), the Board must —

(a)	register as an employee under this Act any employee in respect of whom an employer makes a statement under section 31(1); and
(b)	issue to the employee a certificate of registration.

(2)

A person who desires to register as an employee under

this Act may apply in writing to the Board for

registration.

(3)

An application made under subsection (2) must —

(a)	be made in the approved form; and
(b)	contain the information required by the form.

(4)	The Board may by written notice require —

(a)	an employee in respect of whom an employer makes a statement under section 31(1); or
(b)	an employer who makes a statement in respect of an employee under section 31(1); or

Industrial Legislation Amendment Act 2011

Construction Industry Portable Paid Long Service Leave Act

Part 2

1985 amended

s. 16

(c)	an applicant for registration under subsection (2),

to supply information the Board requires in relation to the proposed registration of the employee or applicant, and may require the information to be verified by

statutory declaration.

(5)	If the Board is not satisfied with any information given in an application or under subsection (4), the Board may —

(a)	in the case of an employee to whom subsection (1) applies, refuse to register the employee; or
(b)	in the case of an applicant for registration under subsection (2), return the application and refuse to register the applicant.

16. Section 31 amended

(1)	In section 31(1):

(a)	delete “each prescribed period —” and insert:

each prescribed period, within 15 days after the end of

that period —

(b)

delete paragraph (a) and insert:

(a)	a statement in the approved form giving the information required by the form; and

Industrial Legislation Amendment Act 2011

Part 2

Construction Industry Portable Paid Long Service Leave Act

1985 amended

s. 17

(2)

Delete section 31(2) and insert:

(2)

A contravention of subsection (1) is not an offence but

that subsection is a civil penalty provision for the

purposes of the Industrial Relations Act 1979

section 83E.

(3)

Subsection (2) extends to a contravention that occurred

within the period of 12 months ending on the coming

into operation of the Industrial Legislation Amendment

Act 2011 section 16 unless the person was charged with

an offence in respect of that contravention.

17. Section 32 amended

Delete section 32(3) and insert:

(3)

A contravention of subsection (1) or (2) is not an

offence but those subsections are civil penalty

provisions for the purposes of the Industrial Relations

Act 1979 section 83E.

(4)

Subsection (3) extends to a contravention that occurred

within the period of 12 months ending on the coming

into operation of the Industrial Legislation Amendment

Act 2011 section 17 unless the person was charged with

an offence in respect of that contravention.

18. Section 34 amended

After section 34(1) insert:

(2A)	In subsection (1) a reference to a person employed as an employee does not include an apprentice.

Industrial Legislation Amendment Act 2011

Construction Industry Portable Paid Long Service Leave Act

Part 2

1985 amended

s. 19

19. Section 35A inserted

After section 34 insert:

35A.

Penalty for late payment

(1)

Without limiting section 34, if an employer fails to pay to the Board an amount of contribution within the time required under section 31(1) the employer is liable to

pay to the Board, by way of penalty, a surcharge

determined by the Board.

(2)

The surcharge becomes due and payable 30 days after the employer is notified in writing by the Board of the determination of the surcharge.

20. Section 38 amended

(1)	After section 38(1) insert:

(2A)

A contravention of subsection (1) is not an offence but

that subsection is a civil penalty provision for the

purposes of the Industrial Relations Act 1979

section 83E.

(2B)

Subsection (2A) extends to a contravention that

occurred within the period of 12 months ending on the

coming into operation of the Industrial Legislation

Amendment Act 2011 section 20 unless the person was

charged with an offence in respect of that

contravention.

(2)	Delete section 38(3) to (6).

Industrial Legislation Amendment Act 2011

Part 2

Construction Industry Portable Paid Long Service Leave Act

1985 amended

s. 21

21. Section 45 amended

Delete section 45(2) and insert:

(2)

A person must not, without reasonable excuse, fail to

comply with a requirement made under subsection (1).

(3)

A contravention of subsection (2) is not an offence but

that subsection is a civil penalty provision for the

purposes of the Industrial Relations Act 1979

section 83E.

(4)

Subsection (3) extends to a contravention that occurred

within the period of 12 months ending on the coming

into operation of the Industrial Legislation Amendment

Act 2011 section 21 unless the person was charged with

an offence in respect of that contravention.

22. Section 49 amended

After section 49(1) insert:

(2A)	In any proceedings against a person for recovery of a surcharge determined under section 35A, a certificate purporting to be signed by the chief executive officer certifying any of the following —

(a)	that the employer named in the certificate was liable to pay the surcharge;
(b)	that the determination of the surcharge was duly made;
(c)	that the amount of the surcharge is as stated in the certificate,

is admissible in evidence in the proceedings and is, in

the absence of evidence to the contrary, conclusive

proof of the matters stated in the certificate.

Industrial Legislation Amendment Act 2011

Construction Industry Portable Paid Long Service Leave Act

Part 2

1985 amended

s. 23

23. Section 50 replaced

Delete section 50 and insert:

50. Review of Board’s decision

(1)	In this section —
*reviewable decision* means a decision by the Board —

(a)	to refuse to register an employee; or
(b)	to require an employer to register under this Act; or
(c)	to remove the name of an employer or employee from the employers register or the employees register respectively; or
(d)	as to the assessment of the amount of ordinary pay of an employee under section 34; or
(e)	as to the entitlement of an employee to long service leave; or
(f)	as to the amount of any moneys to be paid in respect of a long service leave entitlement whether pro rata or otherwise.

(2)

A person who is aggrieved by a reviewable decision

may, in the manner and time prescribed by regulations

made under section 51A(3), refer the decision for

review to the WAIRC constituted by a single

commissioner.

(3)

On a referral of a decision under subsection (2), the

WAIRC is to inquire into the circumstances relevant to

the decision and may —

(a) affirm the decision; or

(b) vary the decision; or

(c)	set aside the decision and —

(i) substitute another decision; or

Industrial Legislation Amendment Act 2011

Part 2

Construction Industry Portable Paid Long Service Leave Act

1985 amended

s. 23

(ii) send the matter back to the Board for reconsideration in accordance with any directions or recommendations that the WAIRC considers appropriate.

51A.

Procedure on review

(1)

The provisions of the Industrial Relations Act 1979

sections 22B, 26(1)(a) and (b) and (3), 27, 28, 31(1),

(2) and (3), 34(3) and (4), 36 and 49 that apply to and

in relation to the exercise of the jurisdiction of the

WAIRC constituted by a commissioner apply to and in

relation to the exercise of the jurisdiction conferred by

section 50 —

(a)	with any modifications that may be prescribed by the Chief Commissioner under the Industrial Relations Act 1979 section 113; and
(b)	with any other modifications that may be necessary or appropriate.

(2)	For the purposes of subsection (1), the Industrial Relations Act 1979 section 31(1) applies as if paragraph (c) were deleted and the following paragraph were inserted —

(3)	The Chief Commissioner may make regulations under the Industrial Relations Act 1979 section 113 providing for —

(a)	the manner in which, and time within which, a decision may be referred for review under section 50; and
(b)	the practice and procedure to be followed for the purposes of a review under section 50.

Industrial Legislation Amendment Act 2011

Construction Industry Portable Paid Long Service Leave Act

Part 2

1985 amended

s. 24

24. Section 51 amended

In section 51(1) delete “by virtue of continuous service with an

employer” and insert:

under another Act or under an industrial instrument

25. Section 52 replaced

Delete section 52 and insert:

52. Obstructing inspector or other person

(1)	A person must not without reasonable excuse —

(a)	obstruct or hinder an inspector performing a function under this Act; or
(b)	fail to comply with a lawful requirement or direction of an inspector under this Act; or
(c)	conceal any person from, or prevent any person from appearing before, an inspector, or attempt to conceal a person from, or prevent a person

from appearing before, an inspector; or

(d)	hinder a person authorised by a union to do so from inspecting any records required to be maintained by an employer under this Act.

(2)

A contravention of subsection (1) is not an offence but

that subsection is a civil penalty provision for the

purposes of the Industrial Relations Act 1979

section 83E.

(3)

Subsection (2) extends to a contravention of section 52

as in force immediately before the coming into

operation of the Industrial Legislation Amendment

Act 2011 section 25 that occurred within the period of

12 months ending on that coming into operation unless

Industrial Legislation Amendment Act 2011

Part 2

Construction Industry Portable Paid Long Service Leave Act

1985 amended

s. 26

the person was charged with an offence in respect of

that contravention.

26. Section 53 replaced

Delete section 53 and insert:

53. Protection of persons giving information under this Act

(1)	A person must not —

(a)	dismiss a person from, or otherwise injure a person in, that person’s employment; or
(b)	detrimentally alter a person’s employment position; or
(c)	refuse to promote a person; or
(d)	refuse to employ another person; or
(e)	directly or indirectly hinder or prevent the employment of another person or the promotion of a person,

when a reason for doing so is that the person or other person has given information to an inspector or to the chief executive officer under this Act.

(2)	A contravention of subsection (1) is not an offence but that subsection —

(a)	is a civil penalty provision for the purposes of the Industrial Relations Act 1979 section 83E; and
(b)	is also enforceable under section 54A.

(3)	Subsection (2) extends to a contravention of section 53(1) as in force immediately before the coming into operation of the Industrial Legislation Amendment Act 2011 section 26 that occurred within

Industrial Legislation Amendment Act 2011

Construction Industry Portable Paid Long Service Leave Act

Part 2

1985 amended

s. 26

the period of 12 months ending on that coming into

operation unless the person was charged with an

offence in respect of that contravention.

54A.

Remedies for breach of section 53

(1)

If an industrial magistrate’s court determines under the

Industrial Relations Act 1979 section 83E that an

employer has contravened section 53(1) in relation to a

person who is or was an employee of that person, the

court may make an order under subsection (2).

(2)

The court may order the employer —

(a)	to reinstate the person if he or she was dismissed from employment; or
(b)	subject to subsection (6), to pay to the person compensation for any loss or injury suffered as a result of the contravention,

or to do both of those things.

(3)	If an industrial magistrate’s court determines under the Industrial Relations Act 1979 section 83E that a person has contravened section 53(1) in relation to a person
other than an employee of the person, the court may, subject to subsection (6), order the person found to have contravened section 53(1) to pay compensation to that other person for any loss or injury suffered as a result of the contravention.
(4)	The court may make an order under this section in addition to imposing a penalty under the Industrial Relations Act 1979 section 83E.
(5)	A person is not entitled to compensation both under this section and otherwise for the same dismissal, loss or injury.

Industrial Legislation Amendment Act 2011

Part 2

Construction Industry Portable Paid Long Service Leave Act

1985 amended

s. 27

(6)	The court does not have jurisdiction under this section to order that there be paid —

(a)	to an employee who has been dismissed, any amount exceeding 6 months’ remuneration of the employee; and
(b)	in any other case, any amount exceeding $5 000 or such other amount as is prescribed by the regulations.

(7)

For the purposes of subsection (6)(a) the court may calculate the amount on the basis of an average rate received during any relevant period of employment.

(8)

A person must comply with an order made against the

person under this section.

Penalty: a fine of $5 000 and a daily penalty of $500.

27. Section 55 amended

In section 55 delete “award” and insert:

any industrial instrument

Industrial Legislation Amendment Act 2011

Industrial Relations Act 1979 amended

Part 3

Preliminary

Division 1

s. 28

Part 3 — Industrial Relations Act 1979 amended

Division 1 — Preliminary

28. Act amended

This Part amends the Industrial Relations Act 1979.

Division 2 — Amendments consequential to Part 2 amendments

29. Section 81AA amended

(1)	In section 81AA delete “on it by —” and insert:
on it by the following —
(2)	Before section 81AA(ba) insert:

(a)	the Construction Industry Portable Paid Long Service Leave Act 1985 section 53;

30. Section 81CA amended

In section 81CA(1) in the definition of general jurisdiction:

(a)	in paragraph (b) delete “1958;” and insert:

1958; or

(b)

after paragraph (b) insert:

(c)	the Construction Industry Portable Paid Long Service Leave Act 1985 section 53;

Industrial Legislation Amendment Act 2011

Part 3	Industrial Relations Act 1979 amended
Division 3	Amendments relating to Commonwealth legislation
s. 31

31. Section 83E amended

(1)	In section 83E(6) delete “An application” and insert:
Except as provided in subsections (6a) and (7A), an application
(2)	After section 83E(6a) insert:

(7A)	In the case of a contravention of a provision under the Construction Industry Portable Paid Long Service Leave Act 1985 that is a civil penalty provision —

(a)	subsection (6) does not apply; and
(b)	an application for an order under this section may be made, with the written consent of the Construction Industry Long Service Leave

Payments Board established under section 5 of that Act, by an officer of the Board.

(3)	In section 83E(7) delete “subsection (6)” and insert:
subsection (6) or (7A)(b)

Division 3 — Amendments relating to

Commonwealth legislation

32. Section 7 amended

(1)	In section 7(1) delete the definition of *Australian Commission*.
(2)	In section 7(1) insert in alphabetical order:

Fair Work Australia means the body established by

the Fair Work Act 2009 (Commonwealth) section 575;

Industrial Legislation Amendment Act 2011

Industrial Relations Act 1979 amended

Part 3

Amendments relating to Commonwealth legislation

Division 3

s. 33

33. Section 31 amended

In section 31(1)(c)(i) delete “Commonwealth Act; or” and

insert:

Fair Work Act 2009 (Commonwealth); or

34. Section 71 amended

In section 71(1) in the definition of Branch delete

“Commonwealth Act;” and insert:

Fair Work (Registered Organisations) Act 2009

(Commonwealth);

35. Section 73 amended

(1)	In section 73(3)(a)(ii) delete “under the Commonwealth Act,” and insert:

made under the Fair Work Act 2009

(Commonwealth) or continued in

existence under the Fair Work

(Transitional Provisions and

Consequential Amendments) Act 2009

(Commonwealth),

(2)	In section 73(7b) delete “under the Commonwealth Act,” and insert:

made under the Fair Work Act 2009 (Commonwealth)

or continued in existence under the Fair Work

(Transitional Provisions and Consequential

Amendments) Act 2009 (Commonwealth),

Industrial Legislation Amendment Act 2011

Part 3	Industrial Relations Act 1979 amended
Division 3	Amendments relating to Commonwealth legislation
s. 36

36. Section 80H amended

In section 80H(6) delete “Commonwealth Act” and insert:

Fair Work (Registered Organisations) Act 2009

(Commonwealth)

37. Section 80ZJ amended

In section 80ZJ(1) delete “Commonwealth Act” and insert:

Fair Work Act 2009 (Commonwealth)

Note:

The heading to amended section 80ZJ is to read:

Exercise of powers conferred under Fair Work Act

38. Section 97VS amended

In section 97VS(5)(a) delete “under the Commonwealth Act,”

and insert:

made under the Fair Work Act 2009

(Commonwealth) or continued in existence

under the Fair Work (Transitional Provisions

and Consequential Amendments) Act 2009

(Commonwealth),

39. Various references to “the Australian Commission” amended

In the provisions listed in the Table delete “the Australian

Commission” (each occurrence) and insert:

Fair Work Australia

Industrial Legislation Amendment Act 2011

Industrial Relations Act 1979 amended

Part 3

Other amendments

Division 4

s. 40

Table

s. 7(1) def. of *secondary office*	s. 14A
s. 14B(1)	s. 22(2)(c)
s. 29AA(1) and (2)	s. 80ZF
s. 80ZG(1), (2) and (3)	s. 80ZH(1), (2), (3) and (4)
s. 80ZI(2) and (3)

Notes:

1. The heading to amended section 80ZF is to read:

References to Fair Work Australia

2. The heading to amended section 80ZH is to read:

Reference of industrial matters to Fair Work Australia for

determination under this Act

Division 4 — Other amendments

40. Section 7 amended

(1)

In section 7(1) delete the definitions of:

Council

deputy registrar

industrial inspector

Registrar

(2)

In section 7(1) insert in alphabetical order:

CEO means the chief executive officer of the

Department;

Department means the department of the Public Service principally assisting the Minister in the administration of this Act;

departmental officer means a person employed in the

Department as referred to in section 99C(2);

Industrial Legislation Amendment Act 2011

Part 3	Industrial Relations Act 1979 amended
Division 4	Other amendments
s. 41
*deputy registrar* means a person designated as a deputy registrar under this Act;
*industrial inspector* means a person designated as an industrial inspector under this Act;
*officer of the Commission* means —

(a)	the Registrar, a deputy registrar or any other Registrar’s Department officer assisting the Commission in the performance of its

functions; or

(b)	an officer appointed under section 93(1a);

officer of the Court means the clerk of the Court or

any other Registrar’s Department officer assisting the

Court in the performance of its functions;

Registrar means the chief executive officer of the

Registrar’s Department or, if another person is

designated as the Registrar under this Act, that person;

Registrar’s Department means the department of the

Public Service known as the Department of the

Registrar Western Australian Industrial Relations

Commission;

Registrar’s Department officer means a person

employed in the Registrar’s Department as referred to

in section 99C(3);

41. Section 29A amended

Delete section 29A(2a) and insert:

(2A)	The Chief Commissioner may, if of the opinion that it is appropriate to do so in the circumstances, direct that the area and scope provisions of the proposed award or industrial agreement —

(a)	need not be published in the Industrial Gazette; or

Industrial Legislation Amendment Act 2011

Industrial Relations Act 1979 amended

Part 3

Other amendments

Division 4

s. 42

(b)	need not be published at all.

42. Section 81AA amended

Delete section 81AA(bb).

43. Section 85 amended

Delete section 85(7) and insert:

(7)

Subject to subsection (9), the chief executive officer of

the Registrar’s Department is to be the clerk of the

Court.

(8)

The Public Sector Management Act 1994 section 32(1)

does not apply to the performance of functions of the

clerk of the Court by the chief executive officer of the

Registrar’s Department.

(9)

The chief executive officer of the Registrar’s

Department may designate a Registrar’s Department

officer as the clerk of the Court.

44. Section 93 amended

(1)

Delete section 93(1) and insert:

(1)	Subject to subsection (1AB), the chief executive officer of the Registrar’s Department is to be the Registrar.

(1AA)

The Public Sector Management Act 1994 section 32(1)

does not apply to the performance of functions of the

Registrar by the chief executive officer of the

Registrar’s Department.

(1AB)

The chief executive officer of the Registrar’s

Department may, after consultation with the Chief

Industrial Legislation Amendment Act 2011

Part 3	Industrial Relations Act 1979 amended
Division 4	Other amendments
s. 45
Commissioner, designate a Registrar’s Department officer as the Registrar.

(1AC)

The Registrar may designate a Registrar’s Department

officer as a deputy registrar.

(1AD)

There are to be as many deputy registrars as are

necessary for the purposes of this Act.

(2)

In section 93(1a) delete “appointed under and subject to Part 3

of the Public Sector Management Act 1994.” and insert:

public service officers.

(3)

After section 93(2) insert:

(3A)	Subsection (2) applies despite the Public Sector Management Act 1994 but if the chief executive officer of the Registrar’s Department is the Registrar, nothing in that subsection affects the functions of the Registrar as chief executive officer.

45. Section 98 amended

Delete section 98(1) and insert:

(1)	The CEO may designate a departmental officer as an industrial inspector.

(2A)	There are to be as many industrial inspectors as are necessary to perform the functions conferred on industrial inspectors by this Act or any other written law.

Industrial Legislation Amendment Act 2011

Industrial Relations Act 1979 amended

Part 3

Other amendments

Division 4

s. 46

46. Sections 99A to 99D inserted

After section 98 insert:

99A.

Identity card

(1)

Every industrial inspector is to be provided with an identity card signed by the CEO or a departmental officer authorised in that behalf by the CEO.

(2)

An identity card purporting to have been provided

under subsection (1) is, without proof of the signature

of the person purporting to have signed it or of the

person’s authority to have signed it, evidence in a

court —

(a)	of the appointment to which the identity card purports to relate; and
(b)	of any other matter specified on the identity card.

(3)	If the designation of a person under section 98(1) is revoked or ceases to have effect, the person must, as soon as practicable, but within 21 days, after the
designation is revoked or ceases to have effect, return the identity card to the CEO or a departmental officer authorised by the CEO to receive it, unless the person has a reasonable excuse.
Penalty: a fine of $2 000.

99B.

Production of identification

(1)	An industrial inspector must, if requested to do so by a person in respect of whom the industrial inspector has exercised, or is about to exercise, a power under this
Act or any other written law, produce the industrial inspector’s identity card for the person’s inspection.

Industrial Legislation Amendment Act 2011

Part 3	Industrial Relations Act 1979 amended
Division 4	Other amendments
s. 46

(2)

Subsection (1) only applies if the industrial inspector is

in the physical presence of the person in respect of

whom the power has been, or is about to be, exercised.

(3)

If for any reason it is not practicable to comply with subsection (1), the industrial inspector must produce the identity card for inspection by the person at the first

reasonable opportunity.

99C.

Staff

(1)	In this section —
*employed* in the Department or the Registrar’s Department includes seconded to perform functions or services for, or duties in the service of, that department.
(2)	As many public service officers are to be employed in the Department as are necessary for the purposes of this Act.
(3)	As many public service officers are to be employed in the Registrar’s Department as are necessary —

(a)	for the performance of the Court’s functions; and
(b)	for the performance of the Commission’s functions; and
(c)	otherwise for the purposes of this Act.

99D.

Designation of officers, generally

(1)	This section applies to the following —

(a)	the designation of a person under section 85(9) to be the clerk of the Court;
(b)	the designation of a person under section 93(1AB) to be the Registrar;
(c)	the designation of a person under section 93(1AC) to be a deputy registrar;

Industrial Legislation Amendment Act 2011

Industrial Relations Act 1979 amended

Part 3

Other amendments

Division 4

s. 47

(d)	the designation of a person under section 98(1) to be an industrial inspector.

(2)	A designation is to be in writing and the Interpretation Act 1984 section 52 applies to it in the same way as that section applies to an appointment.
(3)	A designation referred to in subsection (1)(a), (b) or (c) ceases to have effect if the person designated ceases to be a Registrar’s Department officer.
(4)	A designation referred to in subsection (1)(d) ceases to have effect if the person designated ceases to be a departmental officer.
(5)	The chief executive officer of the Registrar’s Department, the Registrar or the Minister, as the case may be, may, in writing, delegate the power to make a designation to another person.

47. Section 113 amended

(1)	Delete section 113(1)(d)(ii)(III) (first occurrence) and insert:

(IIIA)

the Owner-Drivers (Contracts

and Disputes) Act 2007; and

(2)

After section 113(1)(d)(ii)(III) (second occurrence) and (IV)

insert:

and

Industrial Legislation Amendment Act 2011

Part 3	Industrial Relations Act 1979 amended
Division 4	Other amendments
s. 48

48. Various references to “the Council” amended

In the provisions listed in the Table delete “the Council” (each

occurrence) and insert:

UnionsWA

Table

s. 29A(2)(a)(i) and (b)	s. 31(1)(c)(i)
s. 38(1) and (1a)(a)	s. 40B(2) and (3)(a)
s. 47(5)(a)	s. 50(2)
s. 51A(1)	s. 51BA(1)(a)
s. 51I(2)(a)	s. 51J(a)
s. 51K	s. 97VZ(3) def. of *peak* *industrial body*
s. 112A(1a)(a) and (3)(c)

Industrial Legislation Amendment Act 2011

Minimum Conditions of Employment Act 1993 amended	Part 4
s. 49
Part 4 — *Minimum Conditions of Employment*

Act 1993 amended

49. Act amended

This Part amends the Minimum Conditions of Employment

Act 1993.

50. Schedule 1 amended

In Schedule 1:

(a)	delete the reference after the heading and insert:

[s. 3(1)]

(b)	after “Boxing Day.” insert:

Any special day appointed by proclamation under the Public and Bank

Holidays Act 1972 section 7 to be a public holiday.

Industrial Legislation Amendment Act 2011

Part 5	Employment Dispute Resolution Act 2008 amended
s. 51

Part 5 — Employment Dispute Resolution

Act 2008 amended

51. Act amended

This Part amends the Employment Dispute Resolution Act 2008.

52. Section 3 amended

(1)	In section 3(1) delete the definitions of: *Commonwealth workplace agreement Workplace Relations Act*
(2)	In section 3(1) insert in alphabetical order:

Commonwealth enterprise agreement means an enterprise agreement as defined in the Fair Work Act 2009 (Commonwealth) or any other agreement or

arrangement prescribed under the IR Act section 113

for the purposes of this definition;

(3)	In section 3(1) in the definition of *organisation* delete paragraph (b) and insert:

(b)

an organisation registered under the Fair Work (Commonwealth);

(4)

In section 3(1) in the definition of referral proceeding delete

“Division 2;” and insert:

Division 2.

Industrial Legislation Amendment Act 2011

Employment Dispute Resolution Act 2008 amended	Part 5
s. 53

53. Section 26 deleted

Delete section 26.

54. Section 27 replaced

Delete section 27 and insert:

27. Application for IR Commission to conduct dispute resolution process

A party to an employment dispute may apply to the IR

Commission to have a dispute resolution process

conducted by the IR Commission in relation to the

employment dispute if —

(a)	the parties to the employment dispute are bound by a Commonwealth enterprise agreement; and

(b) the Commonwealth enterprise agreement authorises, permits or provides for the IR Commission, or a member of the IR

Commission, to conduct a dispute resolution process under dispute settlement procedures set out in the agreement.

55. Section 28 amended

In section 28(2) and (3) delete “workplace” (each occurrence)

and insert:

enterprise

Industrial Legislation Amendment Act 2011

Part 5	Employment Dispute Resolution Act 2008 amended
s. 56

56. Section 29 amended

(1)	Delete section 29(1)(a) and (b) and insert:

(a) the Commonwealth enterprise agreement

concerned; and

(b)	the Fair Work Act 2009 (Commonwealth).

(2)

Delete section 29(2) and insert:

(2)	The Fair Work Act 2009 (Commonwealth) section 740 applies to a dispute resolution process conducted under this Division.

57. Section 31 amended

In section 31(1) after “may be made” insert:

by the Chief Commissioner

Industrial Legislation Amendment Act 2011

Litter Act 1979 amended	Part 6
s. 58

Part 6 — Litter Act 1979 amended

58. Act amended

This Part amends the Litter Act 1979.

59. Section 9 amended

Delete section 9(1)(ka) and insert:

(k)	one shall be appointed on the nomination of UnionsWA;

Industrial Legislation Amendment Act 2011

Part 7	Occupational Safety and Health Act 1984 amended
s. 60

Part 7 — Occupational Safety and Health

Act 1984 amended

60. Act amended

This Part amends the Occupational Safety and Health Act 1984.

61. Section 6 amended

In section 6(2)(d)(ii) delete “the body known as The Trades and

Labor Council of Western Australia; and” and insert:

UnionsWA; and